In Pursuit of Adventure

The adventure travel industry, which offers “extreme” or “shock” tourism involving organized trips and activities that are typically physically challenging and often take place in remote and dangerous environments, can have serious legal implications. From participation in dangerous events such as space travel and travel to dangerous places (mountains, jungles, deserts, caves, canyons), these adventures are paired with the significant risk of injury or even death, and therefore have great potential for legal liability. According to Grand View Research, global adventure tourism market size was valued at $324.9 billion in 2022 and is projected to reach $2 trillion by 2032.

Recently, the world witnessed the dangers associated with thrill-seeking in real time as we were riveted by news of the Titan submersible on its journey to the Titanic wreckage, and the unfortunate tragedy that cost the lives of all those onboard. In spite of that tragedy, it does not seem like the adventure industry is slowing down, with more and more people each year scaling Mount Everest, risking the currents of the Drake Passage and buying tickets to visit outer space. With all that in mind, those in the industry should be aware of some key legal considerations.

Liability Waivers

When you participate in virtually any kind of physical activity that may involve injury, most tour operators require you to sign a liability waiver to protect themselves from potential lawsuits in case of accidents or injuries. Adventure tourism companies are no different. They craft waivers that aim to make participants aware of the risks involved in the activity and attempt to limit or lessen the company’s liability.

The waivers that Titan submersible passengers signed purportedly offered a very serious and explicit warning: “This experimental vessel has not been approved or certified by any regulatory body, and could result in physical injury, emotional trauma, or death.” The waiver, after warning the passengers several times about the risk of death, has passengers waive their right to take action for personal injury, property damage or any other loss.

Liability waivers are constantly subject to disputes about their enforceability. Courts may find them unenforceable because they may violate public policy when they are overly broad. While it varies from state to state, a liability waiver is generally overbroad if it encompasses more risk than the would-be victim could inherently conceive, such as waiving all rights even if the company engages in gross negligence or willful misconduct. If the liability waiver seeks to waive such negligent or willful conduct, then it is likely a court would find the waiver is not enforceable.

In addition, waivers are only enforceable if the person signing the waiver has an appreciation and understanding of the risk. Therefore, adventure travel companies should create waivers that explicitly warn of the risks and avoid clauses that would render the waiver unenforceable.

Safety Regulations

Adventure travel companies must adhere to applicable safety regulations, which may vary depending on the jurisdiction and the specific activities involved. These regulations can cover areas such as equipment standards, guide certifications, emergency procedures and environmental impact assessments.

Depending on the kind of thrill-seeking offered, adventure travel companies should carefully review all equipment they use and ensure it is being used strictly in accordance with the recommended or proper use. An injury resulting from misuse of equipment could open the company up to liability and negate any product liability recourse.

To the extent tour guides are required to have certain certifications, the company should ensure their tour guides maintain those certifications. It is a good idea to implement standard safety trainings beyond those that might be required through certification as well. As we all know, in this day of heightened litigation and shock verdicts, more precautions are advisable.

Duty of Care

Adventure travel companies have a duty of care to their clients, which means they must take reasonable steps to ensure the safety of those clients. This duty may include providing proper equipment and safety items, adequately trained guides, risk assessments and emergency response plans.

As stated above, it is important for adventure travel companies to comply with strict safety regulations—those that may be required by statute or ordinance as well as those that the company takes the care to implement. The adventure tourism business has a duty to act with a reasonable standard of care considering the circumstances of the activity it is promoting. Because adventure tourism inherently involves risky and potentially dangerous activities, the standard of care is inherently heightened—the duty becomes one to act as a reasonable business that undertakes these inherently risky activities. So with this duty of care, it becomes even more important to comply with any and all safety regulations and policies—to both ensure the safety of thrill-seeking tourists and limit liability exposure. One must also think broadly on foreseeability or suffer the consequences.

Insurance

Adventure travel companies typically carry liability insurance to cover potential accidents, injuries or property damage that may occur during trips. Insurance coverage is important to protect both the company and the participants. While a company could take every precaution imaginable and diligently work to keep people safe, there is always a risk of injury or worse, and that means the risk of a lawsuit. We all know that’s what insurance is for after all. And jurors are aware of it whether they can talk about it or not.

A standard commercial general liability policy, however, might not adequately cover the kinds of risks involved in adventure tourism. The company should take care to work with an insurance broker who understands the kinds of risks at issue, and engage insurance coverage counsel when purchasing a policy in the event it needs to make a claim under the policy.

Environmental Regulations

Adventure travel often takes place in natural or protected areas, such as national parks or ecologically sensitive regions. Companies may need to comply with environmental regulations to minimize their impact on these areas, such as obtaining permits, following designated trails or adhering to waste disposal guidelines.

Adventure tourism, an ever-expanding industry, can pose an environmental threat, and the industry is shifting with a focus on sustainable and ecological tourism. The industry has been credited with some negative ecological impacts—increased pollution, threats to habitats, endangering plants and animals. Due to the ecological impact, locales are implementing specific regulations to promote environmental protection. Adventure tourism companies need to be fully aware of all applicable environmental regulations, follow them carefully and respect the environment.

Licensing and Permits

Depending on the activities offered, adventure travel companies may need specific licenses or permits to operate legally. These requirements can include permits for accessing protected areas, operating certain types of vehicles or conducting specific activities such as white-water rafting or mountaineering.

International Considerations

Adventure travel companies that operate internationally must navigate a wide range of legal considerations. These include compliance with local laws, securing necessary permits and visas, adhering to cultural sensitivities and understanding the liability frameworks in different jurisdictions.

When adventure travel companies develop waivers or other contractual agreements with their tourists, they should carefully consider choice of law provisions. Companies must understand what jurisdiction they can and should use and understand the laws of that jurisdiction, the nature of their business and the location of the tourists they cater to in their business.

Marketing and Advertising

Adventure travel companies must ensure their marketing and advertising materials accurately represent the experiences they offer and any risks involved. False or misleading information can lead to legal issues, such as false advertising claims or breaches of consumer protection laws.

Contractual Agreements

Adventure travel companies typically have contractual agreements with their participants that outline the terms and conditions of the trip. These agreements may cover areas such as cancellation policies, refunds, participant responsibilities and dispute resolution mechanisms.

In the world of adventure travel and extreme tourism, the thrill of exploration and pushing one's limits is a powerful draw. It also is consistent with a “carpe diem” approach many have undertaken after the COVID-19 pandemic. However, beneath the excitement lies a complex web of legal considerations that must be navigated with care. From liability waivers that protect both companies and participants to stringent safety regulations that ensure a baseline of protection, the adventure travel industry operates under a unique legal framework. Duty of care, insurance, environmental regulations, permits and international nuances further add to the complexity.

While the specific legal implications may vary depending on location and activities, one thing is clear: adventure travel companies must prioritize safety and compliance. Operating in harmony with the environment, accurately representing experiences and enforcing robust contractual agreements are essential components of a successful adventure travel operation. Ultimately, legal adherence not only safeguards the interests of companies but also, most importantly, ensures the safety and satisfaction of the adventurers seeking unforgettable experiences.

In this ever-evolving industry, it is paramount for adventure travel companies to partner with legal professionals well versed in its unique challenges. By doing so, they can venture into the wild with confidence, knowing that they've addressed the legal hurdles that come with the territory.